deposition

In last week’s column, I discussed the importance of effective deposition defense, with a focus on the client-facing aspects of the process. Now it is time to focus on the true star of the show, the witness.

Yes, some witnesses will be important, perhaps even a senior executive at a client. Or a technical expert, on whose testimony your case rides. And other witnesses will be more tangential, like the IT guy you need to defend with respect to e-discovery issues.

Yes, I understand that every witness is critical, especially when it comes to e-discovery. Human nature, however, is to treat “important people,” like executives and experts, with an extra level of care. As a lawyer, the key is to treat every witness you are preparing for deposition with respecr — while remembering your role as an advocate, tasked with winning your client’s case. Effective defense of depositions goes a long way towards achieving favorable litigation results.

Here are some tips:

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Biglaw litigators may enjoy healthy pay, but they are also the target of some ribbing — particularly from the trial-lawyers bar. Anyone who has practiced litigation in Biglaw has heard that they are at best a “deposition lawyer,” better suited for churning out endless motions than for performing in front of a judge or jury. There is no doubt that for the majority of Biglaw litigators deposition experience is much easier to come by than trial experience. And while trials are definitely more intensive and fun, in my experience preparing for a critical deposition in a patent case is in a way more difficult. Unlike at trial, where nearly all of the direct and cross examinations are scripted, there is an element of the unknown at a deposition.

When it is an important witness, such as a technical or damages expert, everyone involved in the case knows that a deposition can be a make-or-break event. In fact, one of the things that makes preparing for trial testimony easier than preparing for a deposition is that when we prepare for trial, we rely heavily on prior testimony in the case. The best source for that prior testimony? Deposition transcripts. But going into a critical deposition, there is much more uncertainty. Everyone on the team worries if the witness will hold up. Does not matter how experienced the expert is, or how senior a business person. The wrong answer can doom a case.

While it may seem like deposition defense is a thankless job, it also provides a priceless opportunity to “hear” your opponent’s approach to important issues in the case. And that can be even more valuable than trying to extract information from a well-prepared witness at a deposition you end up taking at another point in the case.

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How often do you stop to think about the ubiquitous “Made in China” label? If you’re a China lawyer, you should think about it almost every day.

To convince recalcitrant clients of the need for product liability protection for the products they are having made in China, I sometimes send them the following deposition questions asked of a U.S. manufacturer whose China-made product had badly injured a child:

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Sometimes, the conventional wisdom is dangerously wrong.

Today’s conventional wisdom is this: “Never do any direct examination of your own witnesses at [discovery] depositions. These witnesses are under your control. If opposing counsel tries to use the deposition testimony against you in a motion, you’ll just get an affidavit from your witness and fix the problem. If opposing counsel tries to use the bad testimony against you at trial, you’ll just call the witness live at trial, and you’ll fix any issues with the testimony there. Doing direct examination during the deposition just gives opposing counsel advance notice of the way you’ll fix the testimony later.”

(Some folks will admit to an exception or two to this rule. If the witness said “yes” and meant “no,” then maybe you have to fix that on the record at the deposition. If the witness is 95 years old and has a bad cough, then maybe you should do a direct examination during the deposition. But those exceptions are typically few and far between.)

If you haven’t yet heard this conventional wisdom, then either (1) you’re not a litigator or (2) you haven’t yet defended your first deposition of a person under your control.

I’m here today to tell you why this conventional wisdom is often wrong. . . .

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Deidre Dare aka Deidre Clark

Last year, a New York judge denied a motion to dismiss made by Allen & Overy in the sexual harassment case brought against the firm by the former associate known as Deidre Dare (aka Deidre Clark). “And thank God for that,” as Clark herself said.

We have nothing against Allen & Overy; the Magic Circle member is one of the world’s finest firms. It’s just that if the lawsuit had been dismissed, we would have been deprived of this amazing video of a managing partner reading pornography aloud during his deposition.

Yes, we know that watching video is tough for those of you who are reading us at work. But close your office door, or don your headphones, or put a reminder in your calendar to watch when you get home tonight. This short clip is worth it….

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A ‘beauty culturist’ at work.

* The latest update on the law school litigation front represents good news for New York Law School. [National Law Journal]

* Should summarizing a one-day deposition transcript really cost $90,000? Even DLA Piper might blush at such a bill. [Point of Law]

* Ropes & Gray isn’t backing down in the discrimination lawsuit brought by former partner Patricia Martone. (We’ll have more on this later.) [Am Law Daily]

* No, silly polo mogul, you can’t adopt your 42-year-old girlfriend to shield your fortune from litigation. [ABA Journal]

* Replacing “barbers” with “beauty culturists”? This is Indiana and not California, right? [WSJ Law Blog]

Lady Gaga

Back in September, we declared that Lil Wayne was the best celebrity deponent of all time, but now we may have to take back that title and hand it over to Lady Gaga, who recently proved herself to be a gigantic bitch on the record in sworn deposition testimony.

In case you were unaware, Lady Gaga is the queen of all things fabulous. She can get away with wearing things — like dresses made entirely of meat, plastic bubbles, and Kermit the Frogs — that not even Madonna would consider. Her little minions monsters span the globe, and will jump to defend her highness at a moment’s notice. Her lyrics are powerful and awe-inspiring, and she’s a major proponent of gay rights, worldwide.

And last, but certainly not least, she’s a true New Yorker, as is evidenced by the f**k-laden deposition transcript that the New York Post got its grubby little hands on….

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As you will see, it’s not all about the money in life: it’s about health, love, respect, happiness and then at some point about the money, which is the only thing that will survive all of us.

Emel Dilek, the pulchritudinous plaintiff who is suing her former employer for breach of contract. Dilek was the mistress of the company’s former chief operating officer, who hired her; after he passed away, the company fired her.

(A closer look at this sexy plaintiff and her salacious suit, including some rather amusing deposition excerpts, after the jump.)

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I got caught.

In a column last week, I criticized a brief for using the alphabetical short form “EUSLA” to signify “end user software license agreement.” Depending on the circumstances, I suggested, one might shorten the name of that contract to “agreement,” “license agreement,” or “software license agreement,” but “EUSLA” just doesn’t work — it’s meaningless alphabet soup that doesn’t help the reader of a brief.

As I said, I got caught: The lawyer who had drafted the brief read my column, cleverly figured out who I was criticizing, and called to take issue with me. (Serves me right for using real-world examples in this forum, I suppose.)

“You’re wrong, Mark,” my outside counsel said. “We called that contract an ‘EUSLA’ in all of the depositions in the case. When we quoted deposition transcripts in the summary judgment brief, those quotations called the contract an ‘EUSLA.’ We would have confused things if we called the contract an ‘EUSLA’ in the deposition excerpts and a ‘software license agreement’ in the rest of the brief. ‘EUSLA’ was the right choice.”

This conversation illustrates, first, why you shouldn’t quarrel with me while I have this nifty megaphone at Above the Law and you’ve got bupkis; I can’t possibly lose. And the conversation illustrates, second, the meaning of “digging yourself into an even deeper hole.” “EUSLA” is the wrong short-form in a brief, and your earlier mistakes don’t justify your later one . . .

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When it comes to the madness that ensues during the deposition process, we really thought that we had seen it all. We’ve seen witnesses curse at the questioners. We’ve seen a deponent tell an attorney to “suck [his] dick.” We’ve even seen a former Biglaw partner call his opposing counsel an “ignorant slut.” But we’ve never seen something like this.

Apparently when attorneys in Florida get bored during depositions, they turn to their artistic side to get their creative juices flowing. Because there’s nothing like a great dick pic to bring your attention back to the case at hand….

double red triangle arrows Continue reading “Things That Might Get You Thrown Off a Case: Drawing Dick Pics During Depositions at Dunkin’ Donuts”

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